J. Rajmohan Pillai vs State Of Maharashtra And Y.S. ...
2003 Latest Caselaw 355 Bom

JUDGMENT

J.G. Chitre, J.

1. This petition is heard and is being decided at an early date because it is concerned with collection of revenue and allied transactions. Shri Marwadi appears for the Petitioners. Shri Saste appears for State of Maharashtra. Respondent No. 2 is absent. None present for him.

2. The petitioner is assailing the order passed by Additional Chief Metropolitan Magistrate, 47th Esplanade Court, Mumbai in context with Criminal Case No. 5871/S of 1990 whereby the learned Magistrate has taken the cognizance of the complaint filed by Shri Y.S. Vaze, Dy. Commissioner of Income Tax, Acquisition Range I, Bombay against the present petitioner. Respondent No. 2 alleged that the present petitioner entered into an agreement with M/s. Corromondal Indag Products India (P) Ltd., for purchasing the property situated at Maker Towers "E", Cuffe Parade, Bombay-5 for price of Rs. 25,74,000/-. A notice was issued by the Revenue to petitioner in view of Section 269AB read with Rule 48 DD of the Income Tax Act and Rules, 1962 (hereinafter referred to as Act for convenience) and petitioner was directed to file information in form No. 37 I. The petitioner did not comply with the said notice. Hence the Deputy Commissioner of Income Tax was required to file the complaint in the above mentioned Court. The learned Magistrate took the cognizance of the said complaint and issued the process in context with provisions of Section 276AB of the Income Tax Act, 1961 and in the alternative for the offence under Section 276A of the said Act.

3. Section 276AA has been repealed by Finance Act, 1986 with effect from 1.10.1986. In view of that as submitted by Shri Marwadi, the petitioner could not have committed the said offence in the year 1986 on 16.10.1986 when the said Act of selling and purchasing the property was put forth and the form was to be filed. He submitted that when the trial Court was moved to take action in this context, the trial Court did not entertain the application presented by the present petitioner and, therefore, the petitioner is in jeopardy as to which offence he has to face.

4. Shri Saste submitted that appropriate order to be passed as this Court finds it proper.

5. Section 2(w) gives the definition of summons case by indicating that summons case means a case relating to an offence and not being a warrant case. Section 2(x) defines warrant case as a case relating to an offence punishable with imprisonment for life or imprisonment for a term exceeding two years. Both the offences which are indicated against the present petitioner are indicating a procedure which is to be followed by the learned Magistrate for trying summons cases. Section 251 embodied in Chapter XX of Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" ) provides that when in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. If the provisions which have been embodied in Chapter XX of the Code are carefully seen, the accused who is to be tried by the Court in view of the procedure laid down for conducting the trials of summons cases is not likely to get the idea as to which offence he is to face at the time of trial unless the Magistrate performs the judicial act as indicated by Section 251 of the Code. The purpose of enacting Section 251 and the language used in Section 251 makes it very clear that the said provision is mandatory and the Magistrate trying the case is obliged to perform a judicial act and when he is to state the particulars of the offence which such an accused is to face at the time of trial, the Magistrate will have to come to a conclusion positively at that stage pointing out the specific offence or offences to the accused which he is to face in the said trial because the section provides that it shall not be necessary for the Magistrate to frame a formal charge against the accused. When such an application was moved, may not be with a specific direction, the Magistrate was under the duty to apply his judicial mind to the allegations made in the complaint presented before him and to come to the conclusion specifying the offences for which he was to try the present petitioner in view of the said complaint which was presented before him. At that time, the Magistrate should have come to the conclusion whether the present applicant was to be tried for offences indicated by Section 276AB or Section 276AA of Income Tax Act, 1961. Had he applied the judicial mind and proper spirit, correct spirit, then the Magistrate would have noticed the vagueness of the complaint made by the complainant in the said complaint.

6. When an accused has to be tried for summons case for the offences which are providing sentence of imprisonment not exceeding two years term, he has to be given an opportunity of knowing the exact allegations which he has to meet at the time of trial. He has to be given the opportunity of defending him in context with specific allegations. If the complainant has not made specific allegations indicating the specific offences and when the Magistrate is taking the cognizance of such complaint and is issuing the process against such accused, the Magistrate taking the cognizance of such complaint and issuing the process against the accused is under the duty of specifying the exact offence or offences for which such an accused is to be tried in view of the provisions of the sections embodied in Chapter XX of the Code. Such an accused is not expected to meet all sort of vague allegations and shooting of arrows in darkness of the allegations of committing the crime. In the absence of framing a formal charge, he would be caught surprised and would be drawn in the domain of uncertaintity which the law does not expect and criminal jurisprudence does not permit.

7. Thus, this petition is partly allowed and the Magistrate is directed to state the particulars of the offence to the present petitioner by specifying the offence which he has to face in the said trial. Every Magistrate has to keep it in mind that the purpose of the Act as indicated by Section 251 of the Code is a judicial performance and it is to be done by him and is not to be left to the clerks. He has to writ down the particulars of the offence in his own hand writing or get it to be typed under his supervision which should be signed by him. Thereafter the particulars of the offence are to be stated to the accused so as to make him to understand as to what charge he has to face in such a trial and that has to be done by avoiding vagueness. The Magistrate is further obliged to record the plea of such an accused in his own language as the spirit of Section 251 of the Code demands. It is for the purpose of recording his plea in clear terms for knowing whether he is pleading guilty or whether he desires to be tried.

8. The Petitioner to remain present before the same Court on 21.4.2003 within working hours of the Court. After stating the particulars of the offence to him and recording his plea, the Petitioner is at liberty to move an application before the Magistrate in view of Section 205 of the Code for dealing with the submission which has been advanced by Shri Marwadi in respect of exemption. Exemption should be normally granted to the accused who are in distress, aged, ailing and whose presence cannot be procured without putting them hardship and unbearable expenditure.

9. Rule stands made absolute.

Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.